In a first-of-its-kind four day trial last October, a jury found Thomas liable for copyright infringement at a rate of $9,250 per song. Of the 1,700 songs files that the RIAA said Thomas made available, it elected to seek damages on 24 of them – from artists such as AFI, Green Day, and Aerosmith – reaching the breathtaking grand total of $222,000.

U.S. District Court Chief Judge Michael Davis declared a mistrial last month, after finding that RIAA lawyers misguided the jury with an erroneous instruction: Jury Instruction No. 15 told jurors to consider the act of making a copyrighted song available for download (via a P2P client’s shared folder) equivalent to the act of infringement. Because Thomas was not found to have committed actual copyright infringement – proving a thing is impossible, claims the RIAA, because it cannot monitor all the different connections P2P clients make to each other – RIAA lawyers generally equate making available with actually trading music.

“Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online,” said RIAA attorney Timothy Reynolds last month. “[It] would solely benefit those who seek to freeload off plaintiff's investment.”

Davis announced he had doubts about the decision last May, after a slew of similar cases in Florida and Arizona ruled in the defendants’ favor, striking down the “making available” argument. Upon looking into the matter sua sponte – on his own accord – Davis says he found a 1993 ruling from the 8th circuit Court of Appeals that requires evidence of “actual dissemination of copies or phonorecords” in order to prove copyright infringement. The 1993 decision, which featured prominently in the Florida and Arizona decisions, was never mentioned in Thomas’ original trial.

All of which are predated by? The original Napster, Imesh, Limewire, etc etc etc.. all of which were released before the first big legal music downloading service Itunes, which was released in 2001, but was not really mainstream until 2003. Once you get the wheel going, it can be very hard to stop. They waited around instead of being progressive, collecting on royalties from those who dared enter the legal digital download market. The only thing better than 70% royalties is 100% ;) not to mention they could have charged more than a dollar per track. They also could have just plain denied licensing agreements with any other startup which would have made them biggest player in the market.

Although I do not agree with your argument, I have heard it before. This is exactly what they say about the prohibition however in that case, it was probably true because tons of people were addicted to alcohol. I am not so sure it applies to this case in the same way.

I guess you could say that iTunes is not well advertised enough and people do not know the alternative to crime.

More flawed logic...but what the hell...prohibition was overturned because it was unpopular and a law that was frequently violated and cost a lot to prosecute. Therefore comparing the two, the copyright laws are unpopular, frequently violated, cost a lot to prosecute, and should be overturned.

There was a burdon of proof required to convict people of bootlegging liquor too. Since alcohol was outlawed, the proof required was often just having alcohol. Perhaps that's the next step though- simply having music in a digital format will be enough to convict people of "making it available" and result in massive court cases. After all, we've already been told that ripping a CD is illegal by the RIAA and is resulting in artists not getting money via itunes and the like.

Not quite ... see <a href="http://www.usconstitution.net/const.html#Am18">here</a>. The 18th Amendment only prohibited "the manufacture, sale, or transportation of intoxicating liquors", NOT a) consumption or b) possession (in one's home). If one was able to store up alcohol before 1/16/1919, it would be perfectly legal to consume or possess it afterward.

In any case, a burden of proof would be required to convict someone based on actions such as "manufacture, sale or transportation".

"This is about the Internet. Everything on the Internet is encrypted. This is not a BlackBerry-only issue. If they can't deal with the Internet, they should shut it off." -- RIM co-CEO Michael Lazaridis